The U.S. Should Encourage Engagement

Viet D. Dinh is a professor of law at Georgetown University and founding Partner of Bancroft PLLC. He and his Bancroft colleagues Erin Murphy and Nicholas Nelson filed a brief in support of the appellants.

January 5, 2012

Yes. Non-U.S. citizens who live lawfully in America should be allowed to donate to U.S. elections. Actually, under the campaign financing laws, some already can donate -- like those who are permanent residents -- while others cannot.

Criminalize foreign corruption, but don’t treat all foreigners as criminals simply because they love America.

The question facing the Supreme Court is whether that distinction makes any sense. I don’t think so, both as a constitutional and practical matter.

At the constitutional level, the fact that immigration law draws a line at permanent residents for some purposes, like readmission to the country, has little to do with where the First Amendment draws the line for political speech.

At a practical level, drawing the line at permanent residents does not weed out corrupting foreign influence in our political process, but it does preclude meaningful participation and inculcation of American values for scores of noncitizens seeking to be full Americans. Criminalizing the speech of all persons who happen not to carry a green card simply sweeps too broadly. It assumes that all lawful nonresidents, however transient or permanent, are infused with “foreign influence” — exactly the kind of overgeneralization that the First Amendment protects against.

Criminalize foreign corruption; don’t treat all foreigners as criminals simply because they love America. By recognizing that some noncitizens should have the right to participate in the political process, Congress has affirmed the value of civic engagement and political participation. Common sense suggests we should go further to encourage such engagement, and the Constitution requires an equal chance for all to participate.